Rajesh Traders vs The State of Tamil Nadu and Others

K.K. Sasidharan, J.—This Civil Revision Petition is directed against the order dated 04 March, 2015 in C.M.A. No. 5 of 2014, whereby and whereunder, the learned Principal District Judge, Tiruchirappalli, confirmed the order and decretal order dated 19 March, 2014 in I.A. No. 246 of 2013 in O.S. No. 448 of 2007, on file of learned Principal Subordinate Judge, Tiruchirappalli.

The petitioner filed a suit in O.S. No. 448 of 2007 before the Sub Court, Tiruchirappalli, against the State of Tamil Nadu and the Commercial Tax Officer, Trichy, praying for a decree of declaration that the notice dated 20 September, 2007, issued by the Commercial Tax Department, is illegal and void and a consequential injunction restraining the respondents from giving effect to the said notice.

The suit was contested by the second respondent by filing a detailed written statement. The second respondent has taken up a specific contention with regard to the maintainability of the suit.

The petitioner failed to appear before the Trial Court. The Trial Court, therefore, dismissed the suit for non-prosecution.

The petitioner filed an application in I.A. No. 246 of 2013 before the Trial Court to restore the suit. The Trial Court dismissed the application. The order dated 19 March, 2014, was challenged in Civil Miscellaneous Appeal before the learned Principal District Judge. The learned Principal District Judge dismissed the appeal. Feeling aggrieved, the unsuccessful plaintiff in O.S. No. 448 of 2007 is before this Court.

Heard the learned counsel for the petitioner.

The petitioner filed the suit in O.S. No. 448 of 2007 primarily against the Commercial Tax Department. The petitioner wanted to quash the notice issued by the Commercial Tax Officer, Tiruchirappalli. The second respondent challenged the very maintainability of the suit. Even then, the suit was posted for trial. The petitioner failed to appear before the learned Principal Subordinate Judge, on the date of hearing. The learned Principal Subordinate Judge, therefore, dismissed the suit for default.

The petitioner filed I.A. No. 246 of 2013 to restore the suit. The petitioner has given a reason that his child was laid up and as such, he failed to appear before the Trial Court. The learned Principal Subordinate Judge found that the very same petitioner filed another suit in O.S. No. 388 of 2007 and it was also dismissed for default. The petitioner, in his affidavit filed in support of the application to restore the suit in O.S. No. 388 of 2007, contended that he was laid up due to jaundice and as such, he could not appear before the Court. The false reasons given by the petitioner made the learned Trial judge to dismiss the application.

The learned Principal District Judge considered the affidavit filed by the petitioner in I.A. No. 246 of 2013, in the light of the order passed by the learned Principal Subordinate Judge. The learned Appellate Judge very clearly held that the petitioner invented new reasons to suit his convenience. The petitioner has given one reason in O.S. No. 388 of 2007 for his absence and another reason to restore the connected suit in O.S. No. 448 of 2007. The petitioner has not given any explanation with regard to the contradictory stand taken by him. I am, therefore, of the view the learned Appellate Judge was perfectly correct in dismissing the appeal.

There is one more aspect to be looked into in this matter. The second respondent, in his capacity, as a quasi judicial authority, issued a notice to the petitioner on the basis of the surprise inspection conducted by the Enforcement Wing on 22 November, 2005. The Inspection Team recovered several incriminating documents during the course of inspection. The Commercial Tax Officer, with a view to verify the details referred to in D-7 records, summoned the petitioner to produce accounts and the connected records. Since there was no response from the side of the petitioner, final notice was issued on 25 April, 2006, directing him to produce the records. Since accounts were not produced, the Assessing Officer issued a pre-assessment notice, fixing the taxable turnover for the years 2003-2004 and 2004-2005. The petitioner was directed to submit his objection, within a period of fifteen days. The petitioner, without filing objection, straightaway filed the suit in O.S. No. 388 of 2007 for the year 2003-2004 and the present suit in O.S. No. 448 of 2007 for the assessment year 2004-2005.

The Trial Court in a very mechanical manner entertained the suits without addressing the basic issue as to whether the suit is maintainable. The Trial Court is having jurisdiction to decide as to whether the suit is maintainable. There is no need to wait till the appearance of the defendant to file an application under Order 7 Rule 11 of Code of Civil Procedure. Since the matter is covered by a special Statute, the Trial Court, at the first instance, should have considered as to whether the suit is legally maintainable.

Section 77 of the Tamil Nadu Value Added Tax Act, 2006 contains a statutory bar. The said provision bars the Civil Court from entertaining a civil suit to set aside or modify any assessment made under the Act. The Act is a special Statute. The Legislature has constituted a machinery under the Act to redress the grievances of the assessees. The assessee is given a right to file appeal before the appellate authority and revision before the revisional authority. In case the Act contains a machinery to redress the grievances, the civil suit is impliedly barred. However, in the subject case, there is a specific statutory bar under Section 77(1) of the Tamil Nadu Value Added Tax Act, 2006, prohibiting the Civil Court from entertaining civil suits. This provision was overlooked by the learned Principal Subordinate Judge, while entertaining the suit in O.S. No. 448 of 2007.

The petitioner wanted the Civil Court to be converted as an appellate authority over the authorities constituted under the Tamil Nadu Value Added Tax Act, 2006. In any case, the petitioner has not made out any case to restore the suit in O.S. No. 448 of 2007.

In the upshot, I dismiss the Civil Revision Petition. No costs.